Citation Nr: 0918928
Decision Date: 05/20/09 Archive Date: 05/26/09
DOCKET NO. 02-01 757 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland
THE ISSUES
1. Entitlement to an increased evaluation for chronic
myofascial low back pain with herniated nucleus pulposus at
L5-S1, currently evaluated as 20 percent disabling.
2. Entitlement to service connection for bilateral leg pain
secondary to chronic myofascial low back pain with a
herniated nucleus pulposus at L5-S1.
3. Entitlement to service connection for bilateral foot pain
secondary to chronic myofascial low back pain with a
herniated nucleus pulposus at L5-S1.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. P. Simpson, Counsel
INTRODUCTION
The Veteran had unverified active duty from May 1990 to March
1993.
These matters come before the Board of Veterans' Appeals
(Board) from a December 2000 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania. The claims are now under the
jurisdiction of the RO in Baltimore, Maryland. The case, in
part, was remanded to the RO for additional development in
January 2004 and again in February 2007.
In the February 2007 decision, the Board remanded the issue
of entitlement to service connection for a right shoulder
disorder for issuance of a statement of the case. The
Appeals Management Center (AMC) issued a statement of the
case in November 2008. The Veteran did not submit a timely
VA Form 9, to perfect this issue. Thus, the claim of
entitlement to service connection for a right shoulder
disorder is not part of the current appellate review.
The issues of entitlement to service connection for bilateral
leg and foot pain secondary to chronic myofascial low back
pain with a herniated nucleus pulposus at L5-S1 are addressed
in the REMAND portion of the decision below and are REMANDED
to the RO via the AMC in Washington, DC.
FINDING OF FACT
Chronic myofascial low back pain with a herniated nucleus
pulposus at L5-S1 has not been manifested by severe
limitation of lumbar motion; a severe intervertebral disc
syndrome; forward flexion of the thoracolumbar spine to
30 degrees or less; favorable ankylosis of the thoracolumbar
spine; or incapacitating episodes having a total duration of
at least 4 but less than 6 weeks during the past 12 months.
CONCLUSION OF LAW
The criteria for a rating in excess of 20 percent for chronic
myofascial low back pain with a herniated nucleus pulposus at
L5-S1 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A,
5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.159, 3.321(b),
4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a,
Diagnostic Codes 5292, 5293, 5295 (2002); 38 C.F.R. § 4.71a,
Diagnostic Codes 5237, 5243 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
Veterans Claims Assistance Act
The requirements of 38 U.S.C.A. § 5103 and 5103A have been
met. There is no issue as to providing an appropriate
application form or completeness of the application. VA
notified the Veteran in correspondence dated in February 2001
of the information and evidence needed to substantiate and
complete a claim, to include notice of what part of that
evidence is to be provided by the claimant, and notice of
what part VA will attempt to obtain. VA did fail to provide
the Veteran with notice of the rating criteria governing how
to obtain a higher evaluation for chronic myofascial low back
pain and how disability evaluations and effective dates are
assigned prior to the December 2000 rating decision on
appeal. However, in the December 2005 supplemental statement
of the case, the Veteran was provided with notice of the
specific rating criteria (both the former and the current
criteria) for evaluating diseases or injuries of the spine.
Also, in a July 2006 letter, the RO provided the Veteran with
notice of how disability evaluations and effective dates are
assigned. The claim was subsequently readjudicated in a
November 2008 supplemental statements of the case. Thus, any
prejudice to the Veteran for these errors was harmless.
Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the
issuance of a fully compliant VCAA notification followed by
readjudication of the claim, such as in a statement of the
case or supplemental statement of the case is sufficient to
cure a timing defect).
VA has fulfilled its duty to assist the Veteran in obtaining
identified and available evidence needed to substantiate the
claim, including VA treatment records and affording VA
examinations.
The Board concludes the Veteran was provided the opportunity
to meaningfully participate in the adjudication of her claim
and did in fact participate. Washington v. Nicholson, 21
Vet. App. 191 (2007). Hence, there is no error or issue that
precludes the Board from addressing the merits of this
appeal.
Analysis
Service connection for lumbar muscle strain was granted by
means of a December 1993 rating decision and assigned a
noncompensable evaluation, effective March 2, 1993. The
Veteran appealed the evaluation assigned, and a 20 percent
evaluation was granted in a February 1998 rating decision,
effective March 2, 1993. The disability evaluation has
remained at 20 percent since that time.
Disability evaluations are determined by the application of a
schedule of ratings which is based, as far as can practically
be determined, on the average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The service-connected
disability is rated on the basis of specific criteria
identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2008).
Ratings shall be based as far as practicable, upon the
average impairments of earning capacity with the additional
proviso that the Secretary shall from time to time readjust
this schedule of ratings in accordance with experience. To
accord justice, therefore, to the exceptional case where the
schedular evaluations are found to be inadequate, the Under
Secretary for Benefits or the Director, Compensation and
Pension Service, upon field station submission, is authorized
to approve on the basis of the criteria set forth in
38 C.F.R. § 3.321 (2008) an extra-schedular evaluation
commensurate with the average earning capacity impairment due
exclusively to the service-connected disability or
disabilities. The governing norm in these exceptional cases
is a finding that the case presents such an exceptional or
unusual disability picture with such related factors as
marked interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards. 38 C.F.R. § 3.321(b)(1).
Regulations require that where there is a question as to
which of two evaluations is to be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7.
In general, the degree of impairment resulting from a
disability is a factual determination and generally the
Board's primary focus in such cases is upon the current
severity of the disability. Francisco v. Brown, 7 Vet. App.
55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402
(1994).
Disability evaluations are determined by the application of a
schedule of ratings which is based, as far as can practically
be determined, on the average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected
disability is rated on the basis of specific criteria
identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2008).
When evaluating a loss of range of motion, consideration is
given to the degree of functional loss caused by pain.
DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of
musculoskeletal disorders rated on the basis of limitation of
motion requires consideration of functional losses due to
pain). In DeLuca, the Court explained that, when the
pertinent diagnostic criteria provide for a rating on the
basis of loss of range of motion, determinations regarding
functional losses are to be "'portray[ed]' (38 C.F.R. §
4.40) in terms of the degree of additional range-of-motion
loss due to pain on use or during flare-ups." Id. at 206.
The general rating criteria for spinal disabilities under
38 C.F.R. § 4.71a, were revised in September 2002 and
September 2003. The timing of this change requires the Board
to first consider the claim under the old regulations during
the entire appeal period. It considers the claim under the
new regulations after the effective date of the new
regulations. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir.
2003).
Old Regulations. Under the regulations in effect prior to
September 26, 2003, a moderate limitation of lumbar motion
warranted a 20 percent evaluation. 38 C.F.R. § 4.71a,
Diagnostic Code 5292. A severe limitation of lumbar motion
warranted a 40 percent disability rating. Id.
Prior to September 2002, Diagnostic Code 5293, which
addressed intervertebral disc syndrome, provided for an
evaluation of 20 percent for moderate intervertebral disc
syndrome with recurring attacks, and a 40 percent evaluation
for severe intervertebral disc syndrome with recurring
attacks and intermittent relief. 38 C.F.R. § 4.71a,
Diagnostic Code 5293.
Prior to September 26, 2003, the rating schedule for a
lumbosacral strain provided for a 20 percent rating for
moderate lumbosacral strain with muscle spasm on extreme
forward bending, loss of lateral spine motion, unilateral, in
a standing position. 38 C.F.R. § 4.71a, Diagnostic Code
5295. A 40 percent rating was for a severe lumbosacral
strain with listing of the whole spine to opposite side,
positive Goldthwaite's sign, marked limitation of forward
bending in a standing position, loss of lateral motion with
osteo-arthritic changes, or narrowing or irregularity of
joint space, or some of the above with abnormal mobility on
forced motion. Id.
New Regulations. Effective September 23, 2002, an
intervertebral disc syndrome (preoperatively or
postoperatively) is evaluated based on either the total
duration of incapacitating episodes over the past 12 months
or by combining under 38 C.F.R. § 4.25 separate evaluations
for chronic orthopedic and neurologic manifestations along
with evaluations for all other disabilities, whichever method
results in the higher evaluation. With incapacitating
episodes having a total duration of at least 4 but less than
6 weeks during the past 12 months, a 20 percent rating is
warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2007).
With incapacitating episodes having a total duration of at
least four weeks during the past 12 months, a 40 percent
rating is warranted. Id.
Note (1): An incapacitating episode is a period of acute
signs and symptoms due to intervertebral disc syndrome that
requires bed rest prescribed by a physician and treatment by
a physician. "Chronic orthopedic and neurologic
manifestations" means orthopedic and neurologic signs and
symptoms resulting from intervertebral disc syndrome that are
present constantly, or nearly so. 38 C.F.R. § 4.71a.
Note (2): When evaluating on the basis of chronic
manifestations, evaluate orthopedic disabilities using
evaluation criteria for the most appropriate orthopedic
diagnostic code or codes. Evaluate neurologic disabilities
separately using evaluation criteria for the most appropriate
neurologic diagnostic code or codes. Id.
Effective September 23, 2003, a general rating formula
evaluates diseases and injuries of the spine. These criteria
are controlling regardless whether there are symptoms such as
pain (whether or not it radiates), stiffness, or aching in
the area of the spine affected by residuals of injury or
disease. In this respect, a 20 percent evaluation is
warranted for forward flexion of the thoracolumbar spine
greater than 30 degrees but not greater than 60 degrees or
the combined range of motion of the thoracolumbar spine not
greater than 120 degrees. A 20 percent evaluation is also
warranted when there is muscle spasm or guarding severe
enough to result in an abnormal gait or abnormal spinal
contour such as scoliosis, reversed lordosis, or abnormal
kyphosis. A 40 percent evaluation is warranted when forward
flexion of the thoracolumbar spine is limited to 30 degrees
or less or there is favorable ankylosis of the entire
thoracolumbar spine.
Note (1): VA will evaluate any associated objective
neurologic abnormalities, including, but not limited to,
bowel or bladder impairment, separately, under an appropriate
diagnostic code. Id.
Note (2): (See also Plate V.) For VA compensation purposes,
normal forward flexion of the thoracolumbar spine is zero to
90 degrees, extension is zero to 30 degrees, left and right
lateral flexion are zero to 30 degrees, and left and right
lateral rotation are zero to 30 degrees. The normal combined
range of motion of the thoracolumbar spine is 240 degrees.
The normal ranges of motion for each component of spinal
motion provided in this note are the maximum that can be used
for calculation of the combined range of motion.
The Board has carefully reviewed the evidence of record and
finds that the preponderance of the evidence is against an
evaluation in excess of 20 percent for chronic myofascial low
back pain with a herniated nucleus pulposus at L5-S1, whether
the old or the new regulations apply. Considering Diagnostic
Code 5292, the Veteran has not had a severe limitation of
lumbar motion throughout the appeal. For example, in June
2000, she had 95 degrees of flexion. Her total range of
motion at that time was 215 degrees. The Veteran was unable
to perform range of motion during a March 2002 examination
because of severe pain due to left pyelonephritis. The
examination was then conducted in April 2002, but the
examiner did not report range of motion of the lumbar spine.
A May 2004 VA examination report shows she had 90 degrees of
flexion and that her total range of motion was 160 degrees.
In October 2007, she had 90 degrees of flexion and a combined
range of motion of 265 degrees. Such ranges of motion do not
constitute a severe limitation of lumbar motion, as her
flexion has remained full since June 2000.
Considering Diagnostic Code 5293, the Board finds this
Diagnostic Code does not assist the Veteran in obtaining an
evaluation in excess of 20 percent. Specifically, while the
Veteran claims that she has a neurological deficit associated
with her service-connected disability, the preponderance of
the evidence is against such a finding. For example, in the
June 2000 VA examination report, the examiner stated that it
was his opinion that the Veteran's service-connected
disability did not cause symptoms in her legs and feet. In
the May 2004 VA examination report, the examiner stated that
the Veteran had 2+ patellar tendon and Achilles reflexes,
bilaterally. In the October 2007 VA examination report, the
examiner stated that he did not find evidence of root pain
associated with her service-connected low back disability.
At the April 2002 examination, the examiner found that the
Veteran had sciatic symptoms in her right lower extremity,
but even accepting this finding, it does not establish that
the Veteran had a severe intervertebral disc syndrome. The
examiner found that she 5/5 motor strength in all muscle
groups of the lower extremities. She had "decreased
pinprick in the L5 distribution on the right, but was
otherwise intact to light touch. She had 2+ reflexes,
bilaterally. This does not establish a severe intervertebral
disc syndrome. Thus, a higher evaluation under the former
Diagnostic Code 5293 is not warranted.
If applying the criteria under Diagnostic Code 5295, the
preponderance of the evidence is against a finding that the
Veteran has a severe lumbosacral strain. In the June 2000 VA
examination report, the examiner stated the spine was in
balance when standing, and there was no distortion of
posture. Additionally, there was no spasm of the paraspinal
muscles. In the October 2007 VA examination report, the
examiner stated there was no paravertebral muscle spasm
either before or at the conclusion of the examination. Thus,
there is no evidence of listing of the whole spine to
opposite side or positive Goldthwaite's sign. Additionally,
given her ability to flex to at least 90 degrees throughout
the appeal period is evidence against finding a marked
limitation in forward bending or loss of lateral motion. As
the evidence is otherwise against finding that her low back
disorder was characterized as equivalent to a severe
lumbosacral strain, a rating in excess of 20 percent under
Diagnostic Code 5295 is not warranted.
If the Board applies the criteria in effect as of September
2002, an evaluation in excess of 20 percent is also not
warranted. The Veteran submitted evidence of an
incapacitating episode from December 2000. This is prior to
the 2002 change in the criteria. The Veteran has not
submitted any competent evidence of incapacitating episodes
since 2002. As there is no competent evidence in the record
that the Veteran has periods of acute signs and symptoms due
to intervertebral disc syndrome that requires bed rest
prescribed by a physician and treatment by a physician,
consideration under Diagnostic Code 5243 is not appropriate.
Additionally, the Veteran has not attempted to assert that
her flare-ups involve bed rest prescribed by a physician
since 2002. In fact, at the October 2007 examination, she
denied any incapacitating episodes. Thus, consideration of
the criteria under Diagnostic Code 5243 is not warranted.
If the Board applies the criteria in effect as of September
2003, an evaluation in excess of 20 percent is also not
warranted. In order to warrant a rating in excess of
20 percent under the current criteria for rating diseases and
injuries of the spine, the evidence must show that the
Veteran's low back disability is productive of limitation of
forward flexion of the thoracolumbar spine to 30 degrees or
less; or productive of ankylosis in the thoracolumbar spine.
As already reported above, the Veteran's flexion has been,
at worst, 90 degrees throughout the appeal period. Her total
range of motion has ranged from 160 degrees to 265 degrees.
An initial evaluation in excess of 20 percent would not be
warranted under Diagnostic Code 5237.
In considering the holding in DeLuca, 8 Vet. App. 202, the
evidence of record demonstrates that the Veteran has
exhibited lower back tenderness and reported pain and
weakness. She has stated, and provided lay statements
corroborating her complaints, that she has much more severe
low back problems than the 20 percent evaluation
contemplates. The Board, however, notes that examiners have
commented on inconsistencies from the Veteran during
examinations. See May 2004 and October 2007 VA examination
reports. As a result, the Board has accorded little
probative value to her complaints of pain and to the
statements submitted on her behalf from her spouse and
friends regarding her pain.
At the May 2004 VA examination, the Veteran reported she had
significant pain associated with her disability. The
examiner provided rather detailed findings explaining why he
found the Veteran's statements and reports of pain during the
examination inconsistent. He concluded, "There are no
significant signs of the degree of back pain which [the]
patient states she has." In an October 2007 VA examination
report, the examiner noted that he bent the Veteran's knee,
and she complained of low back pain. He stated, "[T]he pain
has no explanation with respect to pathology of the back."
Statements such as this do not help with the Veteran's
credibility, which is why the Board has accorded her
statements of severe low back pain little to no probative
value. Her range of lumbar motion has been full for the
seven-year period between the 2000 examination and the 2007
examination.
When examining her motor strength, examiners have
consistently stated that she has 5/5 strength. See June
2000, April 2002, May 2004, and October 2007 VA examination
reports. Even when functional impairment due to pain is
considered, the evidence of record clearly shows that the
limitation in the Veteran's range of spine motion does not
even remotely approximate the criteria for an evaluation
higher than 20 percent. In the Board's opinion, even when
the Veteran's subjective complaints of pain, tenderness and
weakness are considered, the objective functional impairment
associated with her limitation in her range of lumbar motion
cannot be characterized as severe. DeLuca. Finally, the new
criteria specifically provide that the rating criteria are
controlling whether with or without lumbar pain,
stiffness, or spinal aching.
Thus, whether the Board applies the old or the new criteria
during the appeal period, the preponderance of the evidence
is against an evaluation in excess of 20 percent for
myofascial low back pain with herniated nucleus pulposus at
L5-S1.
The Board considered whether the case should be referred to
the Director of the VA Compensation and Pension Service for
extra-schedular consideration under 38 C.F.R. § 3.321(b)(1).
The Veteran has not required frequent hospitalization for
her low back disability and the manifestations of such are
consistent with the assigned schedular evaluation. In sum,
there is no indication that the average industrial impairment
from the disability would be in excess of that contemplated
by the evaluations assigned for the disability. Therefore,
referral of this case for extra-schedular consideration is
not in order. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996);
Bagwell v. Brown, 9 Vet. App. 337 (1996).
In light of the foregoing, the clinical findings preponderate
against entitlement to an evaluation in excess of 20 percent
for myofascial low back pain with herniated nucleus pulposus
at L5-S1. Hence, the Veteran's claim for an increased rating
is denied. In reaching this decision the Board considered
the doctrine of reasonable doubt, however, as the
preponderance of the evidence is against the appellant's
claim, the doctrine is not for application. 38 C.F.R.
§ 5107.
ORDER
An evaluation in excess of 20 percent for myofascial low back
pain with herniated nucleus pulposus at L5-S1 is denied.
REMAND
The October 2007 was ordered done as a result of the failure
to fulfill the instructions set forth in the January 2004
Board remand. See Stegall v. West, 11 Vet. App. 271 (1998).
The Veteran has claimed that she has bilateral leg and
bilateral foot pain as secondary to the service-connected
myofascial low back pain with herniated nucleus pulposus at
L5-S1. See VA Form 21-4138, Statement in Support of Claim,
received in March 2000.
In the January 2004 remand, the Board requested the
following:
Regarding bilateral leg and foot pain, the
examiner should comment on whether they are
part and parcel to the [V]eteran's back
disability. If the etiology of the leg and
foot disorders is separate from the back,
then provide appropriate diagnoses and an
opinion as to whether it is at least as
likely as not that the back disability was
the proximate cause of or an aggravating
cause of either disorder. The examiner
should set forth in detail all findings
that provide the basis for the opinions.
The requested medical opinion was not supplied following the
January 2004 remand, and in the October 2007 remand, the
Board sought to phrase the questions in a manner that would
allow for a more specific answer. There, it asked:
Regarding bilateral leg and foot pain, both
examiners should comment on whether it is
at least as likely as not that they
represent separate and distinct clinical
entities that were either caused or
aggravated by the [V]eteran's service-
connected low back disorder, or whether
they are part and parcel of the current
service connected low back disorder. If
the etiology of the leg and foot disorders
is separate from the back, then provide
appropriate diagnoses and an opinion as to
whether it is at least as likely as not
that the back disability was the proximate
cause of or an aggravating cause of either
disorder. The examiners should set forth
in detail all findings that provide the
basis for the opinions.
Unfortunately, the above questions were not answered in the
October 2007 examinations, nor in the March 2008 addendum.
Thus, another remand is required. See Stegall, 11 Vet. App.
271.
Accordingly, this case is REMANDED to the RO for the
following action:
1. The RO should make arrangements for the
Veteran to undergo an examination(s) by a
physician who has not examined the Veteran
previously to determine the nature and
extent and etiology of bilateral leg and
foot pain. All indicated tests and studies
are to be performed. The claims folders
and a copy of this Remand must be made
available to the physicians for review of
the case.
Regarding bilateral leg pain, the examiner
must comment on whether it is at least as
likely as not, i.e., is there a 50/50
chance, that the leg pain represents a
separate and distinct clinical entity that
was either caused or is aggravated by the
Veteran's service-connected low back
disorder.
If the answer to the above question is no,
the examiner must comment on whether it is
at least as likely as not that the leg pain
is part and parcel of the current service
connected low back disorder.
Regarding bilateral foot pain, the examiner
must comment on whether it is at least as
likely as not that the foot pain represents
a separate and distinct clinical entity
that was either caused or is aggravated by
the Veteran's service-connected low back
disorder.
If the answer to the above question is no,
the examiner must comment on whether it is
at least as likely as not that the foot
pain is part and parcel of the current
service connected low back disorder.
If the examiner cannot answer the above
questions without an electromyography or a
nerve conduction study such a study must be
ordered.
The examiner must set forth in detail all
findings that provide the basis for the
opinions.
2. The Veteran must be notified that it is
her responsibility to report for any
ordered VA examination, to cooperate in the
development of the claim, and that the
consequences for failure to report for a VA
examination without good cause may include
denial of the claim. 38 C.F.R. §§ 3.158,
3.655 (2008). In the event that the
Veteran does not report for any ordered
examination, documentation should be
obtained which shows that notice scheduling
the examination was sent to the last known
address prior to the date of the
examination. It should also be indicated
whether any notice that was sent was
returned as undeliverable.
3. The RO must review the examination
report to ensure that it is in complete
compliance with the directives of this
REMAND. If the report is deficient in any
manner, the RO must implement corrective
procedures at once.
4. The RO should then readjudicate the
Veteran's claims of entitlement to service
connection for bilateral leg pain secondary
to chronic myofascial low back pain with a
herniated nucleus pulposus at L5-S1; and
entitlement to service connection for
bilateral foot pain secondary to chronic
myofascial low back pain with a herniated
nucleus pulposus at L5-S1. If any claim is
not granted to the Veteran's satisfaction,
send her and her representative a
Supplemental Statement of the Case and give
them an opportunity to respond to it before
returning the file to the Board for further
appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_______________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs